[Federal Register Volume 64, Number 195 (Friday, October 8, 1999)]
[Proposed Rules]
[Pages 54851-54854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26510]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NY34-1-198 FRL-6454-8]
Approval and Promulgation of Air Quality Implementation Plans;
New York; Approval of Carbon Monoxide State Implementation Plan
Revision; Removal of the Oxygenated Gasoline Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In today's action, EPA is proposing to approve a State
Implementation Plan revision submitted by the State of New York on
August 30, 1999. That revision removes New York's oxygenated gasoline
program as a carbon monoxide control measure from the State's SIP. EPA
is proposing to approve this revision because EPA has also determined
that the New York--Northern New Jersey--Long Island carbon monoxide
nonattainment area has attained the carbon monoxide National Ambient
Air Quality Standards.
DATES: Comments must be received on or before November 8, 1999.
ADDRESSES: All comments should be addressed to: Raymond Werner, Acting
Chief, Air Programs Branch, Environmental Protection Agency, Region 2,
290 Broadway, 25th Floor, New York, NY 10007-1866.
Copies of the State submittal and EPA's technical support document
are available for public inspection during normal business hours, by
appointment, at the following addresses: Environmental Protection
Agency, Region 2, Air Programs Branch, 290 Broadway, 25th Floor, New
York, NY 10007-1866. New York State Department of Environmental
Conservation, 50 Wolf Road, Albany, New York 12233.
FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs
Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-
3710.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. What action is EPA taking today?
2. What is the oxygenated gasoline program and how does it apply
in New York?
3. What is the purpose and content of New York's SIP revision?
4. What is EPA's authority for approving oxyfuel removal?
5. How have the criteria for oxyfuel removal been met?
6. How is EPA expediting the processing of New York's request?
7. Conclusion
8. Administrative Requirements
1. What Action Is EPA Taking Today?
EPA is determining that New York's oxygenated gasoline (oxyfuel)
program is no longer needed to maintain the health-related carbon
monoxide (CO) National Ambient Air Quality Standards (NAAQS). As a
consequence of this determination, EPA is proposing to approve part of
a State Implementation Plan (SIP) revision submitted by the State of
New York on August 30, 1999. That revision in part removes New York's
oxyfuel program as a CO control measure from the State's CO SIP. In
today's action, EPA is proposing to approve removal of the oxyfuel
program because it has been determined that the program is no longer
necessary to keep ambient CO concentrations below the CO NAAQS.
In a separate notice published on September 9, 1999 (64 FR 48790),
EPA proposed to determine that the New York--Northern New Jersey--Long
Island CO nonattainment area 1 (``the New York City CO
nonattainment area'', ``the New York City area,'' or ``the area'') has
attained the CO NAAQS.
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\1\ This area is comprised of counties in Northern New York,
downstate New York and Southwestern Connecticut. The Connecticut
portion of the area was redesignated to attainment on March 10, 1999
at 64 FR 12005. The remainder of the area is still designated
nonattainment.
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Under Clean Air Act section 211(m), States with certain CO
nonattainment areas are required to implement oxyfuel programs. Under
section 211(m)(6), once such an area subsequently attains the CO NAAQS,
oxyfuel requirements may be removed if it is demonstrated that they are
not needed for maintaining healthy air quality in that area. Air
quality measurements show that CO concentrations throughout the New
York City area have been declining and have been below the CO NAAQS for
more than four years. Complete monitoring data for the area
demonstrating this finding can be found in the technical support
document for this notice [Region 2 Docket No. NY34-1-198].
EPA has determined, through use of EPA's MOBILE computer model and
air quality dispersion modeling, that the oxyfuel program is no longer
necessary for New York because it has been demonstrated through
technical analyses that attainment of the health-related CO NAAQS will
not be violated anywhere in the area if the program is removed as a
control strategy. By using these modeling tools, EPA has
[[Page 54852]]
determined that improved CO levels are attributable primarily to three
sources of emission reductions: (1) turnover of vehicle fleets in the
area to more sophisticated cleaner technology vehicles; (2)
implementation of reformulated gasoline year round; and (3) the recent
implementation of the enhanced vehicle inspection and maintenance (I/M)
program in New York (enhanced I/M in New Jersey is anticipated to begin
this winter). This modeling, which is discussed in section 5.C of this
notice and detailed in the technical support document, supports the
conclusion that levels of CO meeting the NAAQS are able to be
maintained without the wintertime oxyfuel program in place.
2. What Is the Oxygenated Gasoline Program and How Does It Apply to
New York?
The oxygenated gasoline (oxyfuel) program is one of several
programs designed to reduce CO pollution from gasoline powered vehicles
including passenger cars, sport utility vehicles and light trucks,
which, combined, are significant contributors of CO emissions. EPA
established a NAAQS for CO for the protection of human health. See 40
CFR Sec. 50.8; 50 FR 37501 (Sept. 13, 1985). The applicable CO NAAQS is
9 parts per million (ppm) CO averaged over an eight-hour period.
Inhalation of CO results in inhibition of the blood's capacity to carry
oxygen to organs and tissues. Persons with heart disease, infants,
elderly persons, and individuals with respiratory diseases are
particularly sensitive to CO. Effects of CO on healthy adults include
impaired exercise capacity, visual perception, manual dexterity,
learning functions, and ability to perform complex tasks.
The Clean Air Act sets forth a number of SIP requirements for
states with areas designated as nonattainment for the CO NAAQS. Section
211(m) of the CAA requires states with CO nonattainment areas, having
design values of 9.5 parts per million (ppm) CO or above for any two-
year period after 1989, to implement oxyfuel programs. The requirement
for an oxyfuel program is to apply during the high CO season, which is
generally during the colder winter months when cars tend to have higher
tailpipe CO emissions. Oxyfuel programs require that, during the high
CO season, gasoline contain at least 2.7% oxygen by weight. This
requirement was intended to assure more complete gasoline combustion,
thus achieving a reduction in tailpipe emissions. It should be noted
that the other programs, referenced previously, will continue to ensure
CO concentrations remain at healthy levels.
The requirement for an oxyfuel program applies to certain counties
in New York because portions of the State are included in the New York
City CO nonattainment area which had a design value for CO above 9.5
ppm (that is, levels which exceed the NAAQS). The New York
nonattainment area includes the counties of Bronx, Kings, Queens, New
York, Richmond, Westchester and Nassau. Because the CAA section 211(m)
requirement applies to the Consolidated Metropolitan Statistical Areas
(CMSA) in which the nonattainment area is located, the oxyfuel
requirement for the area applies throughout the larger CMSA. New York's
portion of the larger CMSA, within which the sale of oxyfuel is
required, consists of the following counties: Bronx, Kings, Queens, New
York, Richmond, Orange, Rockland, Putnam, Westchester, Nassau and
Suffolk.
On November 13, 1992, New York submitted to EPA its oxyfuel program
contained in New York Subpart 225-3, ``Fuel Composition and Use--
Gasoline'' (originally adopted September 17, 1992). On July 25, 1996,
EPA approved New York's oxyfuel program into the SIP for the control
period November 1 through the last day of February (61 FR 38594). EPA
also approved Connecticut's oxyfuel program on that date for the same
four-month control period (61 FR 38574). On February 12, 1996, EPA
approved New Jersey's oxyfuel program into the State's SIP for that
same control period (61 FR 5299). At the time of the New York and
Connecticut approvals, EPA made a final determination that November 1
through the end of February is the control period when the New York
City area is prone to high ambient CO concentrations (61 FR 38594).
3. What Is the Purpose and Content of New York's SIP Revision?
New York submitted a proposed CO SIP revision to EPA on August 30,
1999. That submittal proposes to revise the SIP to remove New York's
oxyfuel program as a CO control measure. The submittal also proposes
to: redesignate New York's portion of the New York City nonattainment
area to attainment for CO, modify the Downtown Brooklyn Master Plan to
remove certain transportation control measures that have not yet been
implemented and are no longer necessary to provide for attainment in
that area, and to establish transportation conformity emission budgets
for CO. EPA is proposing action on these other proposed SIP revisions
in a separate notice which will be published in the Federal Register
shortly. Neither New York's redesignation request nor any of the other
elements are directly related to, or required for, the action EPA is
proposing today.
On September 7, 1999, the New York State Department of
Environmental Conservation (NYSDEC) held a public hearing to take
comment on the State's proposed SIP revision to remove its oxyfuel
program from the applicable SIP and on its proposed redesignation
request.
The August 30, 1999 CO SIP revision contains the following
elements, on which EPA is proposing action today:
(1) Air quality monitoring data and modeling data demonstrating
that the New York portion of the New York City nonattainment area
attains the NAAQS for carbon monoxide, without oxyfuel benefits;
(2) The request to remove New York's oxyfuel program regulations
from the applicable SIP.
Removal of the oxyfuel program is supported by the State's
demonstration, using monitored air quality data and vehicle emission
modeling data, that the area is attaining the CO NAAQS, and will
continue to attain even without implementation of the oxyfuel program
in the New York City area. In a similar proposal designed to remove New
Jersey's oxyfuel program published on September 9, 1999 (64 FR 48790),
EPA provided a discussion of an analysis of multi-state air quality and
impacts of oxyfuel removal from the New York City area. The New Jersey
proposal includes discussion of an analysis of certain congested
intersections in New York City. In the New Jersey proposal, EPA
concluded that based on the analyses, the area has been demonstrated to
attain the CO NAAQS without oxyfuel anywhere in the New York City area.
For further detail regarding analysis of that technical demonstration,
the reader is referred to the September 9, 1999 New Jersey proposal at
64 FR 48790 and to the technical support document for today's proposal.
Based on EPA's determination that the New York City area is
attaining the CO NAAQS, and the demonstration of maintenance for the
area, EPA is proposing to approve New York's request to remove the
State's oxyfuel program from its CO SIP.
4. What Is EPA's Authority for Approving Oxyfuel Removal?
Section 211(m) of the Clean Air Act (CAA) generally requires states
to adopt oxygenated gasoline programs for certain areas that, as of
1990, failed to
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meet the National Ambient Air Quality Standard (NAAQS) for carbon
monoxide (CO). Section 211(m)(6) adds, however, that, ``Nothing in this
subsection shall be interpreted as requiring an oxygenated gasoline
program in an area which is in attainment for carbon monoxide * * *''
(emphasis added). EPA interprets section 211(m)(6) to mean that once it
determines that a CO nonattainment area is actually attaining the CO
NAAQS, the State would be allowed to submit a SIP revision to remove
the oxyfuel program so long as the area continues to maintain the CO
standard. A more detailed discussion of this interpretation, and EPA's
authority to remove New York's oxyfuel program from the SIP, can be
found in the September 9, 1999 New Jersey proposal (64 FR 48790).
5. How Have the Criteria for Oxyfuel Removal Been Met?
To determine if a state can remove its oxyfuel program prior to
redesignation for attainment, certain criteria must be met. These
criteria, which are derived directly from our policy for section
211(m)(6) (discussed at 64 FR 48790), are stated below. Following each
is a brief discussion of how New York has met these criteria. A more
detailed technical discussion can be found in the technical support
document for this Federal Register document.
A. Is the Entire Designated Nonattainment Area Actually Attaining the
CO NAAQS?
The entire New York City CO nonattainment area has attained the CO
NAAQS since 1995. The applicable CO NAAQS is 9 ppm averaged over an
eight-hour period. The last CO NAAQS violation occurred in
1994.2 A summary and discussion of the air quality
monitoring data, for New Jersey, New York and Connecticut, which shows
that the entire three-state area has attained the CO NAAQS, can be
found in the September 9, 1999 New Jersey proposal (64 FR 48790).
Complete data and a detailed discussion of it can be found in the
technical support document for this proposal.
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\2\ A violation occurs when two non-overlapping exceedances are
recorded at the same monitoring site during the same calendar year.
An exceedance occurs when an average CO concentration greater than
or equal to 9.5 ppm is recorded over an eight-hour period.
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B. Is the Program To Be Removed Already Approved Into the SIP? If so,
Has the State Submitted a SIP Revision Request, Which Complies With CAA
Section 110(l), To Remove the Oxyfuel Program From the SIP?
The oxyfuel program was approved into the New York SIP on July 25,
1996. Subsequently, New York submitted a SIP revision on August 30,
1999 to remove New York's oxyfuel program as a CO control measure from
the SIP. CAA section 110(l) requires that a state's SIP revision cannot
interfere with a state's attainment or rate of progress toward
attainment. EPA has determined that New York's August 30, 1999 SIP
revision meets the requirements of section 110(l) because it has been
demonstrated that removal of the oxyfuel program from the SIP will not
interfere with any state's CO attainment (see the following
subsection). This action will also not interfere with any state's
attainment of any other criteria pollutants.
C. Is Maintenance of the CO NAAQS, Without Implementation of Oxyfuel,
Demonstrated for the Entire Area?
Attainment has been demonstrated in the entire area (New York, New
Jersey and Connecticut) without the use of oxygenated fuels. New York
submitted an attainment demonstration which shows that CO emissions
will not exceed health-related air quality standards now or in the
future. Levels in its portion of the area. In addition, EPA's proposed
approval of removal of oxyfuel in New Jersey includes an analysis for
certain congested intersections in New York City demonstrating
attainment of the CO standard at those intersections without the
oxyfuel program. A summary and discussion of the modeled air quality
findings for the New Jersey, New York and Connecticut portions of the
area can be found in the September 9, 1999 New Jersey proposal (64 FR
48790). Additional details regarding these analyses can be found in the
technical support document for this notice.
6. How Is EPA Expediting the Processing of New York's Request?
This revision is being proposed using an expedited procedure called
parallel processing, whereby EPA proposes rulemaking action
concurrently with the State's procedures for revising its SIP. If the
proposed revision is substantially changed in areas other than those
identified in this document, EPA will evaluate those changes and may
publish another notice of proposed rulemaking. If no substantial
changes are made other than those areas cited in this document, EPA
will publish a final rulemaking on the revisions. The final rulemaking
action by EPA will occur only after the SIP revision has been adopted
by New York and submitted formally to EPA for incorporation into the
SIP.
7. Conclusion
EPA is proposing to approve New York's August 30, 1999 SIP revision
to remove the State's oxygenated gasoline program from the federally
approved State Implementation Plan. EPA's authority to approve removal
of a state's oxyfuel program is set forth at Clean Air Act section
211(m)(6). EPA has determined that the criteria of section 211(m)(6)
have been satisfied and removal of the oxyfuel program at this time is
appropriate.
EPA is able to approve removal of the oxyfuel program in New York
pursuant to CAA section 211(m)(6) only because EPA has determined that
the area is actually attaining the CO NAAQS. In the unlikely event that
the New York City CO nonattainment area subsequently records a
violation of the CO NAAQS, EPA's basis for approving the removal of the
oxyfuel program would no longer exist and the requirements of section
211(m) would again become effective for New York. This means that the
State would need to implement an oxyfuel program in accordance with the
requirements of CAA section 211(m).
8. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Orders on Federalism
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to
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develop an effective process permitting elected officials and other
representatives of state, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism
still applies. This rule will not have a substantial direct effect on
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 12612.
The rule affects only two states, and does not alter the relationship
or the distribution of power and responsibilities established in the
Clean Air Act.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed SIP revision is
not subject to Executive Order 13045 because it proposes approval of a
state program revision, and it is not economically significant under
Executive Order 12866.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP approval does not create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
annual costs to State, local, or tribal governments, in the aggregate,
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action does not
include a federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This federal action proposes
to approve amendments to State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 29, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 99-26510 Filed 10-7-99; 8:45 am]
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